Board of Education v. Allen, 392 U.S. 236 (1968) upheld a New York law allowing the loan of secular textbooks to all schoolchildren, including those in parochial schools. Justice Byron R. White wrote the 6-3 decision, rejecting establishment and free exercise challenges based on the First Amendment. In this photo, student Billy Cort, carrying one of his textbooks titled ‘Our Environment, How We Use and Control It,’ peaks inside East Point, Atlanta, Ga. High School’s front door, Jan. 11, 1959, while the school was closed for the holidays. (AP Photo/Horace Cort, used with permission from the Associated Press)

In Board of Education, Island Trees Union Free School District v. Pico, 457 U.S. 853 (1982), the Supreme Court addressed a constitutional challenge to a local school board’s decision to remove several books from the district’s school libraries; in a splintered decision with seven of the nine Justices writing opinions, the Court held that factual disputes about the school board’s motivation for the removal precluded the school board from prevailing in the lower court without a full trial.

Students sued school board after books removed from library

The local school board had ordered that certain books written by celebrated authors such as Richard Wright and Kurt Vonnegut be removed from the district’s school libraries. The board characterized the books as “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy.” Some students at the affected schools brought suit against the school board, arguing that the board’s actions violated their First Amendment rights.

Lower courts disagreed on whether a trial should be held

The trial court granted judgment for the school board without a trial, concluding that courts should generally defer to the school board’s broad discretion to formulate educational policy. The court of appeals reversed, holding that this summary judgment was inappropriate when there was a contested factual issue as to whether the school board was motivated by a desire to remove books containing vulgarities and sexual explicitness, a permissible motivation, or by an “impermissible desire to suppress ideas.”

Justices said school boards could not remove books to suppress ideas

On the principle that “the Constitution protects the right to receive information and ideas,” he concluded that the removal of books from the shelves of a school library implicates students’ First Amendment rights in part because of “the special characteristics of the school library.” Justice Brennan then concluded that school officials may not exercise their discretion to remove books from a school library based on “narrowly partisan or political” grounds, because doing so would amount to an “official suppression of ideas.”

In a concurrence, Justice Blackmun rejected the notion that a school library was distinct from the school itself and also disagreed with the notion that students had a First Amendment “right to receive” in the context of a public school. He agreed, however, that school officials’ removal of books “for the purpose of restricting access to the political ideas, or social perspectives discussed in them, when that action is motivated simply by the officials’ disapproval of the ideas involved” was a violation of the First Amendment.

Court said a trial should have been held rather than giving summary judgment to school board

On the basis of the factual disputes in the record about whether the school board members had removed the books because of their vulgarity or to suppress the books’ ideas, Brennan, Marshall, Stevens, and Blackmun voted to affirm the appellate court’s decision to reverse the district court’s grant of summary judgment.

The fifth vote to affirm the court of appeals was provided by Justice Byron R. White, who concurred in the judgment but expressly disavowed stating any views on the First Amendment question. Because of this unusual breakdown in the votes of the justices, the legal holding of Pico consists simply of Justice White’s very limited opinion.

Dissenters did not think removing the books implicated First Amendment rights

All four dissenting justices wrote opinions attacking Justice Brennan’s views. The dissents argued that removing the books from the school libraries did not implicate any First Amendment rights because the books were available elsewhere; the “right to receive information” does not apply in the context of a school; and federal courts should leave educational policy decisions to local government officials subject to democratic accountability.

Anuj C. Desai is the William Voss-Bascom Professor of Law at University of Wisconsin Law School.